1989 PLP (C (PLC(CS))

S. ABDUL JABBAR KHAN (CHAIRMAN).--M/s. Abdul Sattar son of Mahmud Bakhsh in Appeal No. 212/1721 of 1982 and Abdul Sattar son of Allah Bakhsh in Appeal No. 213/1722 of 1982, have filed these appeals under section of the Punjab Service Tribunals Act, 1974, in which both the appellants have impleaded Chief Engineer, Irrigation Department, Bahawalpur Region, Bahawalpur, Secretary to Government of the Punjab, Irrigation and Power Department Lahore, M/s. Khalil Ahmad, Nazir Ahmad and Muhammad Saeed, Sub-Divisional Officers, as respondents. 2. By virtue of these two appeals they have prayed that the impugned orders dated 9-3-1982/25-4-1982, be set aside and respondent No. 2 be directed as per recommendation of the Chief Engineer Irrigation, Bahawalpur Region to award pro forma promotion from the date of their next junior contesting respondents were so promoted and the appellants be declared senior to all the contesting respondents. 3. As the pint of law and facts of the case, are identical in both these appeals, therefore, we will dispose of these appeals by our this single judgment. 4. We have heard the learned counsel for the appellants as well as learned District Attorney as well as learned counsel for the contesting respondents, and have perused the record of these cases carefully with their assistance. 5. Learned counsel for the appellants has submitted that in case of M/s. Nazir Ahmad and Muhammad Saeed, the Government of Baluchistan was not within its legal limits to confer pro forma promotion vide its notification of the year 1974, as the respondents at the relevant time were not physically working with the said Government but stood repatriated to the Government of Punjab. He has also made a grievance about the conduct of the respondents M/s. Nazir Ahmad and Muhammad Saeed .that both of them were repatriated to the Government of Punjab as officiating S.D.Os and secured their posting as regular S.D.Os. by concealing their real status which they were actually enjoying at the time of repatriation from the Baluchistan Government. According to the learned counsel for the appellants, this notification should be struck down as void ab initio and the promotion so awarded to the contesting respondents be withdrawn. 6. With regard to the case of Khalil Ahmad, contesting respondent, it has been submitted on behalf of the appellant that he was basically junior as shown in the seniority list of Overseers than the appellants but Government of the Punjab vide its notification dated 28-11-1973 ordered regular promotion of the said respondent w.e.f. 18-7-1968. A grievance has been made to. the effect that the Governor had no authority to do so unless and until the case of the appellants was considered alongwith Khalil Ahmad as he was junior to the appellants. 7. On the other hand learned District Attorney has submitted that the appellants are still working as acting S.D.Os. in their own pay and grade, therefore, they cannot claim any seniority over the contesting respondents who had already been promoted on regular basis under the notification of 1973, w.e.f. 18-7-1968. According to the learned District Attorney, as this notification was passed in the name of the Governor against which no representation could lie, under section 21 of the Punjab Civil Servants Act, 1974, the claim of the appellants would be hopelessly time-barred, a claim which they are putting up, for the first time, before this Tribunal in 1982. 8. With regard to the validity of the Governor's notification, it has been submitted that the Governor has unfettered powers under section 22 of the Punjab Civil Servants Act, 1974, to take any action in the matter of civil servant and the same could not be struck down. It has been further pointed out that the case of Abdul Sattar son of Allah Bakhsh on the basis of seniority, is also misconceived because he was always shown junior to the respondent Khalil Ahmad according to the seniority list of 1975, so published by the Department. 9. We have given our anxious thought to the arguments so advanced by the parties and have already adjudicated the point raised by the learned counsel for the appellant with regard to the validity of the notification of '1974, issued by the Government of Baluchistan, in detail vide our judgment in Appeal No. 211/1723 of 1982 Abdul Rashid Khan v. Chief Engineer, Irrigation, Bahawalpur and others, of even date. We need not repeat the argument given by us in extenso in this judgment but it will be sufficient to say that we have repelled this argument of the learned counsel for the appellant in the said case on the ground that notification of Government of Baluchistan was a notification made by the Government after consulting the Baluchistan Public Service Commission and it cannot be struck down as either illegal or void. Moreover, the action taken by Governor of another Province and that too in a prescribed manner, after taking all-the pros and cons, into consideration would be perfectly legal and we cannot sit in judgment over a subject-matter of another Province. 10. With regard to the case of Khalil Ahmad, there is a notification of Governor in the field, which would be a notice to the appellants as well as to all concerned and the attitude of the appellants for not agitating the same, after the same came into existence, would be an act of laches on their part and they cannot be allowed to agitate it after a lapse of 9 long years. In this manner, we have no hesitation to uphold the valid objection raised by the learned District Attorney that the claim of the appellants is hopelessly time-barred and there are hardly any ground available to them for condonation of delay, which this Tribunal could have considered if so advanced before it. Be that as it may, the fact remains that the appellants hardly enjoyed the status of Sub-Divisional Officers, therefore, they cannot be permitted to claim seniority over a person or persons who have marched ahead since long and are working as regular incumbents of such posts. 11. With regard to the case of pro forma promotion there is no dispute about the proposition so set up by the learned District Attorney, that once the competent authority after considering the case of a civil servant for such promotion, is pleased to reject the same, this Tribunal would be barred by section 4 of the Punjab Service Tribunal Act, 1974, to sit in judgment over the same. Mere seniority as Sub-Engineer cannot be the only criteria with the Governor when he passed the impugned notification as in the matter of promotion, it is seniority-cum-fitness, which is always taken into account, at the time of passing order for promotion of a civil servant. 12. In the light of the above analysis of the case we do not find any merit in these appeals which are dismissed accordingly. There will be no order as to costs. Judgment be communicated to the parties. AA./272/Sr. P????????????????????????????????????????????????????????????????????????????????????? Appeals dismissed. ???????????????????????